United States Court of Appeals
For the First Circuit
No. 08-2281
UNITED STATES,
Appellee,
v.
HALVOR CARL,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Lynch, Chief Judge,
Stahl, Circuit Judge,
and DiClerico,* District Judge.
Robert C. Andrews for appellant.
Margaret D. McGaughey, Appellate Chief, with whom Paula D.
Silsby, United States Attorney, was on brief for appellee.
January 29, 2010
*
Of the District of New Hampshire, sitting by designation.
DICLERICO, District Judge. The defendant, Halvor Carl,
appeals his conviction and sentence following a jury trial in the
district court. Carl was convicted on Count 6 of the Indictment,
which alleged distribution of cocaine base in violation of 21
U.S.C. §§ 841(a)(1) and (b)(1)(C). He was sentenced to 120 months
in prison and to 3 years of supervised release. On appeal, Carl
argues that the district court erred by admitting certain
statements at trial, improperly calculating the drug quantity for
purposes of sentencing, and including acquitted conduct in the
presentence report. For the reasons that follow, we affirm the
judgment of the district court.
I.
During the end of October and beginning of November 2004,
two men robbed and burglarized several business establishments in
Cumberland and York Counties, Maine. Following an investigation,
law enforcement officials identified Bryan Black and Timothy Riley
as suspects and obtained a search warrant for Halvor Carl's mobile
home in Buxton. Around midnight on November 6, 2004, a team of
Maine law enforcement officials executed the warrant by surrounding
the home and phoning Carl to request that the people within leave
voluntarily. When Carl came out of his home, he was told to kneel
and was restrained with flex cuffs. No Miranda warnings were given
at that time.
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Donald Foss, a detective lieutenant with the Cumberland
County Sheriff's Office, was the first officer to speak with Carl.
Preparing to take Carl to a nearby command post, Foss patted Carl
down and asked him his name. Carl answered and then asked, "Why
aren't you arresting the real robbers?" Foss inquired, "Who is
that?," to which Carl replied, "Bryan [Black] and Timothy [Riley]."
Carl also told Foss that Black was hiding in Carl's home and Riley
had a gun and was at a nearby motel with Marylou Frisco, who was
Bryan's sister and Carl's live-in girlfriend. Carl said that
Timothy would not come to Carl's home because Carl would "beat his
ass."
Two Gorham police officers then took Carl to the Buxton
Police Department. At the station, he was advised of his Miranda
rights, and he signed a waiver of his rights. An officer told him
he was free to leave, but he spoke with two policemen for an hour.
In early March 2005, Carl left a message with the U.S.
Attorney's Office indicating that he had information about the 2004
robberies. On March 8, he was interviewed by Special Agent Michael
Grasso of the Bureau of Alcohol, Tobacco, Firearms, and Explosives
(ATF). Carl told Agent Grasso about the involvement of Black,
Riley, and Frisco in the robberies, but he refused to provide
information about himself without an attorney. Shortly after
receiving a grand jury subpoena a few days later, Carl requested
and received court-appointed counsel.
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On March 14, 2007, a federal grand jury indicted Carl,
Black, and Frisco for the robberies.1 The indictment also included
one count against Carl of distributing cocaine base (crack). Carl
was arrested on May 31, 2007, in Virginia, by ATF Special Agent
Kurk Broksas, as well as by a Secret Service agent and a deputy
U.S. Marshal. When Carl was in custody, he received Miranda
warnings but stated that he was willing to answer questions without
an attorney. During an interview with Agent Broksas, Carl made
several incriminating statements, including an admission that he
had sold cocaine to Riley and Black and had possessed 0.33 gram of
cocaine in New Hampshire and 14 grams of cocaine in Maine. Carl
mentioned that he was represented by counsel, in the context of
explaining why he had fled to Virginia. Specifically, he said that
his attorney told him that if Carl were convicted on pending state
charges, he could then be prosecuted on federal charges and might
be considered a career criminal, which would increase his sentence.
At no time during the interview did Carl request to speak to his
appointed attorney or any other attorney.
Carl was tried in federal district court from April 28 to
April 30, 2008. During the trial, Riley, Frisco, and Black all
testified about the drugs they bought and received from Carl. Riley
stated that Carl was his heaviest supplier, who sold Riley several
1
Riley was the subject of a separate criminal complaint.
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"hundred-rocks" of freebase cocaine.2 Frisco testified that she
received both crack and powder cocaine from Carl beginning on her
second date with him, in July 2004, and that she smoked cocaine
Carl had supplied all day, every day toward the end of October and
beginning of November 2004. Black recalled that he used cocaine
with Carl within fifteen minutes of being introduced to him. The
three cooperating witnesses also testified that there were several
other people who came to Carl's home during the period from August
to November of 2004 both to purchase and to use cocaine.
Detective Foss and Agent Broksas also testified briefly
at Carl's trial. Foss recounted the statements that Carl made to
him on the night of November 6, 2004, that Black and Riley were the
real robbers, that Black was in Carl's home, that Riley had a gun
and was at a motel with Frisco, and that Riley would not go to
Carl's home because Carl would assault him. Broksas testified that
Carl told him that he had gone to Virginia to avoid prosecution in
Maine and New Hampshire on state drug charges. Broksas also
recalled Carl's admissions about possessing and selling cocaine.
During closing arguments, the prosecutor mentioned Carl's
2
According to the testimonies of Riley, Frisco, and Black, a
"hundred-rock" is the amount of crack that can be purchased with
one-hundred dollars and is usually approximately 1 gram. Similarly,
a "fifty-rock" is the amount of crack that can be purchased for
fifty dollars and is usually approximately 0.5 gram. An "eight-
ball" is 0.125 ounce, which is approximately 3.5 grams.
-5-
confession to Broksas about selling drugs to Riley and Black, but
did not discuss Foss's testimony.
Carl was acquitted of the robbery charges but convicted
on the single count of distributing cocaine base, in violation of
21 U.S.C. § 841(a)(1) and (b)(1)(C). His sentencing hearing was
held September 22, 2008, during which Riley, Frisco, and Black,
pursuant to their plea agreements, testified again about the drugs
they had received from Carl. Riley stated that he bought at least
one fifty-rock from Carl every day for two weeks, and that the
total was between 7 and 14 grams of crack. Frisco said she began
dating Carl in July of 2004 and that he gave her at least 1 gram of
powder and 2 grams of crack each day from that point until November
6, 2004, with the exception of only thirteen days. She also
recounted several trips with Carl both in and out of state to
purchase either small amounts of crack or between 1 and 5 ounces of
powder cocaine. Black said he purchased about $17,000 worth of
crack from Carl over the period in question. He recalled receiving
at least 2 grams, or as much as two or three eight-balls each day,
as well as five or six eight-balls on a single day in October.
Black remembered accompanying Carl on trips to Massachusetts and
New Hampshire during which Carl purchased a total of 9 or 10 ounces
of cocaine.
Carl's counsel vigorously cross-examined all three of the
cooperating witnesses, both at trial and sentencing. He pointed
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out that they were long-time drug addicts who were hoping, by
testifying, to receive reductions in their sentences.
Based on the witnesses' testimony, the court found that
Carl was responsible for distributing a total of 579.5 grams of
crack and 106 grams of powder cocaine. Applying the Sentencing
Guidelines, the court determined that the amount was equivalent to
11,611.2 kilograms of marijuana, which resulted in a base offense
level of 36. This level was reduced to 34 under U.S.S.G. § 2D1.1
Commentary Note 10(D)(i). Carl's criminal history category was I.
The court found that the guideline range was 151-188 months. After
considering the presentence investigation report (PSR), the
evidence and arguments offered by counsel, Carl's short allocution,
the seriousness of the offense, and the need for deterrence, the
court sentenced Carl to 120 months in prison and 3 years of
supervised release.
II.
Carl raises four issues on appeal. He contends that the
district court erred in admitting at trial the statements he made
to Agent Broksas in Virginia, and that this error violated his
Sixth Amendment right to counsel. Carl argues that the court also
erred in admitting the statements he made to Detective Foss, which
violated his Fifth Amendment right against self-incrimination. With
regard to sentencing, Carl argues that the court erred in relying
on the testimony of drug-addicted cooperating witnesses in finding
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the amount of drugs for which Carl should be held responsible.
Finally, Carl asserts that the district court failed to resolve a
dispute over the inclusion of acquitted conduct in the PSR, and
that failure to do so could cause the Bureau of Prisons to classify
him incorrectly.
A. Sixth Amendment Claim
Carl argues that his Miranda waiver at the outset of the
May 31, 2007, interrogation was ineffective because his attorney
was not present, and that therefore his Sixth Amendment right to
counsel was violated. He acknowledges that the waiver was knowing
and voluntary and that he did not explicitly request an attorney at
any time during the interview. He argues, however, that he invoked
his right to counsel during his March 8, 2005, interview with
Special Agent Grasso and that this invocation barred any resumption
of interrogation by any official about the same crime.3
We do not reach the merits of Carl's claim that his Sixth
Amendment right to an attorney was violated because we find that if
any error occurred, it was harmless. "[W]e will not reverse a
conviction because of trial error in admitting evidence obtained in
3
As the government notes, Carl's argument appears to allege
violations of both his Sixth and Fifth Amendment rights, although
he frames the issue as implicating only the Sixth Amendment. Even
if Carl's Fifth Amendment argument were deemed not waived and
sufficiently explicated to warrant our review, our analysis would
not change. "Statements induced in violation of Miranda's
safeguards are appropriate for analysis under the 'harmless beyond
a reasonable doubt' test." United States v. Batista-Polanco, 927
F.2d 14, 21 (1st Cir. 1991).
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violation of a defendant's Sixth Amendment right to counsel if the
error was 'harmless beyond a reasonable doubt.'" United States v.
León-Delfis, 203 F.3d 103, 112 (1st Cir. 2000) (quoting Milton v.
Wainwright, 407 U.S. 371, 372 (1972)).
In order to determine whether an error was harmless
beyond a reasonable doubt, we consider a number of factors,
including "the importance of the challenged statement in the
prosecution's case, whether the statement was cumulative, the
presence or absence of evidence corroborating or contradicting the
statement on material points, the extent of cross-examination
otherwise permitted, and the overall strength of the prosecution's
case." United States v. Earle, 488 F.3d 537, 546 (1st Cir. 2007).
When weighing these factors, we are mindful that a defendant's
confession "[is] by nature highly probative and likely to be at the
center of a jury's attention." León-Delfis, 203 F.3d at 112.
Agent Broksas testified that Carl told him that he had
gone to Virginia to avoid being prosecuted on state drug charges,
that he had sold cocaine to Riley and Black, and that he had
possessed 14 grams of cocaine in Maine and 0.33 gram in New
Hampshire. Even if Agent Broksas's testimony had been excluded,
other evidence proved that Carl was distributing cocaine base.
Riley, Frisco, and Black each testified repeatedly about the drugs
Carl provided to them.
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Carl was Riley's "heaviest supplier of crack," who helped
Riley smoke "constantly" during the two or three weeks leading up
to November 6. Riley testified that Carl gave him and Black crack
just before the two burglarized a store in Limington, Maine. Riley
discussed purchasing hundred-rock after hundred-rock from Carl, and
seeing many other people in Carl's house smoking crack. He said
that the first time he met Carl was at Riley's mother's house,
where she, her fiancé, and Carl were smoking crack. Riley also
explained that he gave the proceeds of his crimes, including the
three November robberies in Gorham, Buxton, and Hollis, Maine,
directly to Carl to pay for drugs.
Frisco testified that Carl gave her crack on her second
date with him, and that he continued to do so through November 6.
Her account of smoking "every day, all day" in late October and
early November, and observing Riley doing the same thing, matched
Riley's statement. Frisco told the jury that her brother, Bryan
Black, was Carl's customer, and that her other brother, Michael
Frisco, purchased marijuana and pills from Carl, in addition to
cocaine. She testified that Riley's mother and her fiancé were
"frequent customers" of Carl's, which was consistent with Riley's
testimony. Frisco also confirmed the fact that the proceeds from
the three robberies were paid to Carl in exchange for crack. In
addition, she said that she was upset that Carl's home, where she
was staying with her three children, "looked like a 7-Eleven with
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so many cars [belonging to drug customers] out front." Frisco
described taking between ten and twenty trips with Carl to purchase
cocaine, including purchases from his daughter in New Hampshire, a
man in Sanford, Maine, and individuals in the Riverton Park area of
Portland.
Black said that he paid Carl for cocaine using both the
income Black earned at legitimate construction and masonry work and
the proceeds of various burglaries and the November robberies.
Black described going with Carl to buy crack three times: twice to
Manchester, New Hampshire, and once to Sanford. Black, like the
other two witnesses, described seeing Carl distribute crack to
other customers "numerous times."
Carl's attorney cross-examined Riley, Frisco, and Black
at length about their testimony, their criminal histories, and
their drug use. Each witness described prior convictions, many
years of drug use and, in Riley's case, mental health disorders.
Carl's attorney also brought out the witnesses' cooperation with
the prosecution under the terms of plea agreements and questioned
whether they were lying in order to get Carl convicted and, in
turn, receive reductions in their sentences for assisting the
prosecution.
In comparison to the lengthy, detailed testimonies of
Riley, Frisco, and Black, Agent Broksas's testimony about Carl's
statement was brief. He told the jury that Carl confessed to
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selling and possessing cocaine. Carl's attorney examined Broksas
about his training in questioning suspects, and Broksas admitted
that he did not tape-record his interview with Carl, which would
have provided a more faithful account of Carl's statements than the
report Broksas wrote the day after the interview. He also
acknowledged that Carl might have used words that differed slightly
from those Broksas put in his written report.
The primary and most important evidence of Carl's
extensive drug activities came from Riley, Frisco, and Black. Their
testimony strongly corroborated Carl's confession as reported by
Broksas. Unlike Broksas's summary of Carl's confession, which was
cursory and lacked detail, the testimony of Riley, Frisco, and
Black included many details of specific drug sales. Further,
although the prosecutor mentioned Carl's confession in closing
argument, she focused on the drug evidence provided by these three
witnesses.
While we do not minimize the fact that a confession is
generally considered important evidence of guilt, in this case the
weight to be accorded to the confession was lessened through cross-
examination, and, importantly, other substantial evidence
corroborative of Carl's guilt was presented to the jury. Taking
into account all of the evidence adduced at trial, we conclude
that, even if the district court erred in admitting Carl's
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confession, which we doubt, any error was harmless beyond a
reasonable doubt.
B. Fifth Amendment Claim
Carl asserts that the district court erred by admitting
the statements he made to “detectives” on the night of November 6,
2004. The only such statements admitted at trial were those made
to Detective Foss, and those are the statements we will review.
Carl argues that the admission of his statements violated
his Fifth Amendment rights because the police did not administer
Miranda warnings before Carl's interaction with Foss, and they
delayed the warnings until Carl reached the Buxton police station.
As with the statements Carl made to Agent Broksas in
Virginia, we do not reach the issue of whether Carl's Fifth
Amendment rights were violated because even if they were, the
court's decision to admit the evidence was harmless beyond a
reasonable doubt. "Statements induced in violation of Miranda's
safeguards are appropriate for analysis under the 'harmless beyond
a reasonable doubt' test." Batista-Polanco, 927 F.2d at 21.
Foss testified that Carl gave his name and said, "Why
aren't you arresting the real robbers?" When Foss asked who that
was, Carl said, "Bryan and Timothy," and then said that "Bryan was
currently in [Carl's] house hiding and that Timothy was at the
Sunrise Motel [with Carl's] girlfriend." Carl also said "Timothy
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had the gun" and "Timothy wouldn't come to [Carl's] home because
[Carl] would beat his ass."
Carl's statements to Foss pertain to the robberies, not
to drug activity. Carl was convicted of the drug distribution
charge but was acquitted of the robbery charges. Because the
disputed statements did not provide evidence of drug activity, the
statements had little, if any, probative value in proving the drug
distribution charge. In addition, as is explained in the context
of Carl's Sixth Amendment claim, the government provided
substantial evidence of Carl's drug activities through the
testimony of Riley, Frisco, and Black, and Foss's testimony about
Carl's statements was a minor aspect of the government's case.
Therefore, any error in admitting the statements was harmless
beyond a reasonable doubt.
C. Drug Quantity
Carl contends that the district court should not have
relied on the testimony of Riley, Frisco, and Black to determine
the quantity of drugs for sentencing. He argues that the witnesses
were inherently unreliable because they were addicted to drugs at
the time of the events about which they testified, and because they
were motivated to overestimate the amount of drugs Carl distributed
to them in order to receive reductions in their own sentences. Carl
also suggests that the witnesses' testimony at his sentencing
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hearing cannot be trusted because it differed from the witnesses'
testimony at trial.
On appeal, "we review a sentencing court's factual
findings anent drug quantity for clear error." United States v.
Platte, 577 F.3d 387, 392 (1st Cir. 2009). "Absent a mistake of
law . . . we must honor such findings 'unless, on the whole of the
record, we form a strong, unyielding belief that a mistake has been
made.'" Id. (quoting Cumpiano v. Banco Santander P.R., 902 F.2d
148, 152 (1st Cir. 1990)).
For its part, the sentencing court must "base [its]
findings on reliable information and, where uncertainty reigns,
must err on the side of caution." United States v. Sepulveda, 15
F.3d 1161, 1198 (1st Cir. 1993) (quotations omitted). A drug
quantity determination "need only be supported by a preponderance
of the evidence."4 United States v. González-Vélez, No. 07-2277,
2009 WL 4068606, at *7 (1st Cir. Nov. 25, 2009). The court is not
required to "be precise to the point of pedantry." Platte, 577
F.3d at 392; see also United States v. Rodriguez, 525 F.3d 85, 107
4
Carl asks us to apply a heightened level of scrutiny to the
testimony of drug-addicted cooperating witnesses. He asserts that
the Third, Sixth, Seventh, and Eighth Circuits have adopted such a
standard. See, e.g., United States v. Beler, 20 F.3d 1428, 1435
(7th Cir. 1994); United States v. Miele, 989 F.2d 659, 666 (3d Cir.
1993); United States v. Simmons, 964 F.2d 763, 776 (8th Cir. 1992);
United States v. Robison, 904 F.2d 365, 371 (6th Cir. 1990). We
decline to abandon the standard set forth in Sepulveda and
subsequent cases.
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(1st Cir. 2008) (drug quantity determination need only be "a
reasoned estimate").
Sentencing courts routinely make determinations about the
credibility or reliability of witnesses. "Faced with divergent
estimates of drug quantity, a sentencing court is entitled to make
judgments about veracity and reliability and to pick and choose
among the divergent estimates." Platte, 577 F.3d at 393. Moreover,
where, as here, "the sentencing judge . . . preside[s] over the
appellant's trial, and . . . see[s] and hear[s] the witnesses . .
. he [i]s in an excellent position to gauge their relative
credibility." Id.
As in many drug cases, the witnesses here used drugs
heavily, have significant criminal histories, and were testifying
under the terms of their plea agreements. However, the testimony
of each witness at trial was consistent both with what the other
witnesses said at trial and with what each said at sentencing.
Inconsistencies in the testimony were relatively minor and were
explained by the witnesses.
At trial, Riley said that he smoked crack constantly for
the two or three weeks leading up to the events of November 6,
2004, and that he always used the proceeds of his criminal deeds to
purchase the drugs from Carl. At sentencing, Riley said that Carl
provided him with drugs for about three weeks or a month leading up
to November 6, and that Carl probably sold him 20 grams or less, in
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total. Riley noted, however, that he had other dealers and that
the days on which he got drugs from Carl would add up to two weeks.
At trial, Riley said that he purchased hundred-rocks from Carl, but
at sentencing he recalled that Carl was a dishonest businessman and
that the hundred-rocks were really only about 0.5 gram each.
At trial and sentencing, Frisco's accounts of Carl giving
her drugs beginning on their second date were consistent. Her
recollection of taking trips with Carl to purchase drugs, including
the number of trips, the destinations, and the amounts of drugs
purchased, was also consistent. She testified at sentencing that
she got at least 2 grams of crack and 1 gram of powder cocaine from
Carl every day from the second week of July through November 6,
with the exception of two days when Carl was away and eleven days
when she stayed in a shelter.
Similarly, Black's testimony at trial and sentencing that
he gave Carl the money from his crimes as well as from his
legitimate work was consistent. He testified both at trial and at
sentencing that he accompanied Carl three times to buy drugs.
The testimony of Riley, Frisco, and Black would likely
have justified both a higher quantity of drugs and a lengthier jail
sentence. The district court, however, repeatedly and
appropriately exercised caution in each of its determinations
regarding the drug quantity. The court used only the amounts that
each witness testified he or she received from Carl. Amounts that
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Carl purchased, including between 5 and 8 ounces from his
daughter's boyfriend in Manchester, 1 ounce from the Sanford
shopping mall parking lot, and approximately 200 grams from
Riverton Park, were not counted. Amounts that Carl sold to other
customers, including Riley's mother and her fiancé, were also not
included.
In addition, the court used the lowest amounts to which
each witness testified. Riley first testified that he bought about
20 grams of crack from Carl. After being walked through a timeline
of events, Riley said it was probably more like 0.5 gram per day
for two weeks. The court attributed 7 grams to Riley. Frisco
testified that she received at least 1 gram of cocaine powder and
2 grams of crack from Carl each day beginning in early July and
continuing through November 6, 2004, with the exception of eleven
days when she was in a shelter and two days while Carl was away.
She also remembered that Carl would sometimes leave her another 1
or 2 grams, or as much as an eight-ball, on top of the regular
amount. The court ignored the additional amounts, and found Carl
responsible for 106 grams of powder and 212 grams of crack for the
106 days in July through November. Black testified that he bought
at least one eight-ball--but sometimes as many as two or three
eight-balls--each day in August, September, October, and November
1-6, and that there was one day in October when he bought five or
six eight-balls. The court used the lowest number, one eight-ball
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per day, and attributed 360.5 grams of crack to Black based on
ninety-seven days plus six eight-balls on the aberrant day in
October.
The court again used caution by sentencing below the
guideline range. The amounts that Carl distributed to Riley,
Frisco, and Black were equivalent to 11,611.2 kilograms of
marijuana. That amount, combined with Carl's criminal history
category of I, resulted in a base offense level of 34, which
yielded a recommended range of 151-188 months. The court varied
downward from the guideline range and sentenced Carl to 120 months
in prison. In light of the conservative approach taken by the
court in estimating the quantity of drugs for which Carl was held
responsible, and the fact that there was adequate support in the
record for the court's determination, there was no clear error.
D. Acquitted Conduct
In his brief, Carl argues that the district court erred
by failing to resolve a dispute over whether it was proper to
include the conduct of which Carl was acquitted in the PSR. He
contends that including acquitted conduct in the PSR violated
Federal Rule of Criminal Procedure 32(i)(3)(B), which requires, at
sentencing, that "the court . . . must--for any disputed portion of
the presentence report or other controverted matter--rule on the
dispute or determine that a ruling is unnecessary either because
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the matter will not affect sentencing, or because the court will
not consider the matter at sentencing."
During sentencing, Carl objected only to “the use of
acquitted conduct for [the court’s] consideration” (emphasis
added). In response, the district court made a finding that,
"[C]ase law permits me to use acquitted conduct . . . . That
objection's overruled." It is clear that the court ruled on the
asserted objection, and therefore there was no violation of Rule
32(i)(3)(B).
In contrast to what appears in the sentencing transcript,
Carl in his brief appears to raise a new theory on appeal. Here,
Carl contends that inclusion of the acquitted conduct in his PSR
was error because prison personnel may interpret the PSR
incorrectly and may improperly classify Carl as a violent felon,
based on the acquitted robbery charges. Because Carl’s new theory
pertaining to the effect of the acquitted conduct on his prison
classification was first raised on appeal, it is waived. United
States v. Wallace, 573 F.3d 82, 96 n.13 (1st Cir. 2009). Even if
that were not the case, his new theory is not sufficiently
developed to permit review. United States v. Zannino, 895 F.2d 1,
17 (1st Cir. 1990).
Therefore, Carl has not shown that the district court
failed to comply with Rule 32(i)(3)(B) or that any other error
occurred by including the acquitted conduct in the PSR.
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III.
For the foregoing reasons, Carl's conviction and sentence
are affirmed.
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